Opinion
No. 03-CV-195 (DNH/DRH)
November 4, 2003
KENNETH M. SISSEL, ESQ., Lilburn, Georgia, for Plaintiffs
HON. GLENN T. SUDDABY, Syracuse, New York, for Defendants
CHARLES E. ROBERTS, ESQ., Syracuse, New York, for Defendants
MEMORANDUM-DECISION AND ORDER
Plaintiffs Susan Hallockand Ferncliff Associates, Inc., dba Multimedia Technology Center, commenced this action against various federal law enforcement officers seeking the recovery of damages for violations of their civil rights under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971). Presently pending is the request of plaintiffs for entry of an order pursuant to Fed.R.Civ.P. 16 establishing a schedule for discovery in this case. Defendants oppose the request on the ground that their recently filed notice of interlocutory appeal divests this Court of jurisdiction to enter such an order. For the reasons which follow, plaintiffs' request is denied pending resolution of defendants' appeal.
I. Background
On June 8, 2000, defendants seized several of plaintiffs' computers in the course of a child pornography investigation. According to plaintiffs, the seizures resulted from defendants' misidentification of plaintiffs and the computers were returned to plaintiffs on December 21, 2000 without any criminal charges being filed. Plaintiffs allege, however, that when the computers were returned, certain portions of the systems had been destroyed or rendered unusable, including "client, business and personal records, intellectual property, proprietary designs, and trade secrets." Mem. — Decision Order (Docket No. 37) at 2 (MDO);see also _ F. Supp.2d _, 2003 WL 22007210 (N.D.N.Y. Aug. 19, 2003). Plaintiffs contend that the seizure of and damage to their computers caused them to close their business with attendant financial loss. Am. Compl. (Docket No. 8).
Plaintiffs first commenced an action against the United States under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671-80. See Hallock v. United States, 253 F. Supp.2d 361 (N.D.N.Y.2003) ("Hallock I"). The United States moved to dismiss the complaint therein pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim and that motion was granted pursuant to Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction. Id.; MDO at 4. The present action was commenced while that motion was pending. Defendants then moved to dismiss this action pursuant to 28 U.S.C. § 2676 for lack of subject matter jurisdiction and pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim. Docket No. 17. That motion was denied (MDO) as was defendants' motion for reconsideration. Docket No. 46. Defendants then filed a "Notice of Interlocutory Appeal." Docket No. 47. Plaintiffs' request herein followed. Docket No. 50.
The motion was granted pursuant to 28 U.S.C. § 2680(c) of the FTCA, which precludes claims against the United States for "the detention of any goods or merchandise by any officer of customs or any other law enforcement officer." MDO at 2 n. 1.
Section 2676 provides that "[t]he judgment in an action under § 1346(b) of this title shall constitute a complete bar to any action by the claimant, by reason of the same subject matter, against the employee of the government whose act or omission gave rise to the claim."
II. discussion
As a general rule, the "filing of the notice of appeal divest[s] the district court of jurisdiction" over the action. Horn Sui China v. United States, 298 F.3d 174, 180 n. 5 (2d Cir. 2002) (citingGriggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982)). The notice of appeal "divests the district court of its control over those aspects of the case involved in the appeal." Griggs, 459 U.S. at 58. It precludes the district court from ruling "on any motion affecting an aspect of the case that [is] before [the appellate court] . . . while that appeal [is] pending." Horn Sui Ching, 298 F.3d at 180.The parties have cited no cases concerning the denial of a motion seeking enforcement of the FTCA judgment bar in § 2676, and research has revealed no such case. However, in the analogous context where a defendant who claims a qualified immunity from liability for civil rights violations files notice of an interlocutory appeal from a district court's denial of a dispositive motion on that defense, the court of appeals clearly has jurisdiction. See, e.g.,Savino v. City of New York, 331 F.3d 63, 71 (2d Cir. 2003). It also appears in the qualified immunity context that the filing of a notice of interlocutory appeal divests the district court of jurisdiction. See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) ("Until this threshold immunity question is resolved, discovery should not be allowed."); Williams v. Brooks, 996 F.2d 728, 729 (5th Cir. 1993) ("the traditional rule that the filing of a notice of appeal divests a district court of jurisdiction . . . applies with particular force in the immunity context."); Chuman v. Wright, 960 F.2d 104, 105 (9th Cir. 1992) (holding that when a defendant files a notice of interlocutory appeal on an issue of qualified immunity, "the district court is automatically divested of jurisdiction to proceed with trial pending appeal"); Stewart v. Donges, 915 F.2d 572, 577 (10th Cir. 1990) ("Defendants' right not to be tried while an interlocutory appeal is pending on qualified immunity arises `automatically' upon the appeal").
Here, as with an appeal on an issue of qualified immunity, defendants' challenge the entire legal basis for plaintiffs' law suit. The pending appeal thus involves all aspects of this case. In these circumstances, the filing of the notice of interlocutory appeal by defendants has divested this Court of jurisdiction to enter a scheduling order. Plaintiffs' request must be denied.
III. Conclusion
For the reasons stated above, it is hereby
ORDERED that plaintiffs' request for an order setting a schedule for discovery pursuant to Fed.R.Civ.P. 16 is DENIED pending resolution of defendants' appeal.
IT IS SO ORDERED.